Will the International Criminal Court care about Ongwen’s rotten childhood?

28 January 2015 by Tjitske Lingsma, The Hague (The Netherlands)

Dominic Ongwen, a Ugandan commander in the Lord’s Resistance Army (LRA), made his first appearance before the International Criminal Court (ICC) on Monday for a pretrial hearing. What now? IJT asked two experts what they expected of this first ICC case against a former child soldier-turned-perpetrator.

Ex-LRA commander Dominic Ongwen surrounded by court guards and his defence lawyer at the ICC (Flickr/ICC-CPI)
Image caption: 
Ex-LRA commander Dominic Ongwen surrounded by court guards and his defence lawyer at the ICC (Flickr/ICC-CPI)

Despite his smart suit, crisp white shirt and matching chequered tie, Ongwen looked uncomfortable and out of context in the dock at the ICC. He spent most of his life fighting in the jungle as a high-level commander in Joseph Kony’s notorious LRA rebel group, waging wars of brutal terror for over three decades. Ongwen is accused of horrendous atrocities in Uganda and neighbouring countries.

Two uniformed guards helped him place his headphones and gave indication when it was time for him to stand and speak. Ongwen cast an uneasy look at the public gallery where journalists, diplomats and human rights activists sat. A victim later told IJT she quivered with shock the moment she saw him in court.

When ICC Judge Ekaterina Trendafilova sought to verify his background details, Ongwen replied politely. Some answers revealed new information. “I was born in 1975 and I was abducted in 1988. I was taken to the bush when I was 14 years old,” he stated. It was long believed that Ongwen was abducted at age 10, made to watch fellow abductees be beaten, maimed and killed, then forced to become a child soldier, quickly ascending the LRA ranks.

The current ICC charges cover crimes Ongwen allegedly ordered during a 2004 attack at an undisclosed IDP camp in Uganda: crimes against humanity (murder, enslavement, inflicting serious bodily injury and suffering) and war crimes (murder, cruel treatment, attacking civilians, pillaging).

The arrest warrant dates from 2005 and does not include crimes in the Democratic Republic of Congo, Central African Republic (CAR) or South Sudan. It is possible new charges will be added later, says Harvard professor Alex Whiting, who worked as an investigation and prosecution coordinator at the ICC from 2010 to 2013.

Boosting ICC legitimacy?

Much is still unknown about how Ongwen was captured in the CAR, held by US military advisors, handed over to African Union forces and finally the Ugandan army. Judge Trendafilova said he was transferred to ICC custody on 16 January and signed a declaration to “voluntarily” appear before the court.

Whiting has no doubt ICC’s office of the prosecutor (OTP) is “delighted” with the arrest. “One of the biggest problems of the court is apprehending fugitives. If a person like Ongwen is apprehended, this can boost the legitimacy of the court,” he told IJT.

However, the LRA commander might be a more complicated suspect than hoped for. The ICC’s first case against Congolese warlord Thomas Lubanga Dyilo focused solely on his recruitment and use of child soldiers. Then prosecutor Louis Moreno Ocampo spoke of “the environment of terror” to which youth were subjected when forced to become soldiers and where “the oppressive environment deprived [them] freedom of choice”. 

“Child soldiers were painted in the most dreadful and pained fashion,” says Mark Drumbl, director of the Transnational Law Institute at Washington and Lee University. “If the former child soldier really is so devastated, then how responsible can that individual be for the most cruel of acts committed as an adult?” Drumbl hopes the Ongwen case will “unpack” the complexity of child soldiering. “It might help us transcend the binary that child soldiers all lack responsibility and that all adults are fully autonomous persons. The reality is more ambiguous.”

Whiting, however, believes it “is not a big deal” that the ICC is prosecuting a former victim. He compares it with domestic criminal cases against violent adults who were mistreated in childhood. “The fact that you were a victim is no excuse for becoming a perpetrator,” he says. Still, he agrees that proving Ongwen was “coerced” to commit the crimes or “damaged” may allow his past to “count as a mitigating factor”, though not hinder his prosecution.

Drumbl thinks this potential line of argument is exactly why his youth will probably play a big role. “I can readily see Ongwen’s lawyer raising the issue of his entire socialization under a form of structural duress and arguing that all his horrific actions were reflexive of survival skills. That he is mentally damaged. Indeed, if you are an adult and you have spent most of your life in the LRA because you grew up in the LRA, what will that say about your psychological situation? How will the ICC assess his trauma? His rotten childhood could also be a mitigating factor in any eventual sentencing.”

Plea bargain?

In statements just after his detainment in the CAR, Ongwen called on fellow rebels to follow his example, raising speculation that he turned against the LRA. “If that is true, he might reach an agreement with the OTP to plead guilty, testify against LRA commanders, accept lesser charges and be credited with a lesser sentence,” Whiting posits.

Plea deals have been used at the International Criminal Tribunal for the former Yugoslavia, including for senior officials like Biljana Plavsic, part of the wartime Bosnian Serb presidency. “It would be a great thing for the ICC,” says Whiting, if Ongwen pled guilty. “First of all, it is important that perpetrators take responsibility for their actions. Secondly, you can build stronger cases when insiders are willing to testify against others. And thirdly, a guilty plea saves a lot of resources.”


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